SECTION 21 It cannot be for the good of the People
that the Magistrate have a power above the Law. and he is not a Magistrate who
has not his power by Law.

THAT we may not be
displeased, or think it dangerous and slavish to depend upon the will of a man,
which perhaps may be irregular or extravagant in one who is subject to no law,
our author very dexterously removes the scruples by telling us,

1. That the prerogative of the king to be above the law, is only for
the good of them that are under the law, and to preserve their
liberties.

2. That there can be no laws without a supreme power to command or
make them: In aristocracies the noblemen are above the law; in democracies the
people: By the like reason in a monarchy, the king must of necessity be above
the law.

There can be no sovereign majesty in him that is under the law: that
which gives the very being to a king, is the power to give laws. Without this
power he is but an equivocal king. It skills not how he comes by this power,
whether by election, donation, succession, or any other
means.[1]

I am contented in some degree to follow our author, and to acknowledge
that the king neither has nor can have any prerogative which is not for the
good of the people, and the preservation of their liberties. This therefore is
the foundation of magistratical power, and the only way of discerning whether
the prerogative of making laws, of being above laws, or any other he may
pretend, be justly due to him or not: and if it be doubted who is the fittest
judge to determine that question, common sense will inform us, that if the
magistrate receive his power by election or donation, they who elect, or give
him that power, best know whether the good they sought be performed or not; if
by succession, they who instituted the succession; if otherwise, that is, by
fraud or violence, the point is decided, for he has no right at all, and none
can be created by those means. This might be said, tho all princes were of ripe
age, sober, wise, just and good; for even the best are subject to mistakes and
passions, and therefore unfit to be judges of their own concernments, in which
they may by various means be misguided: but it would be extreme madness to
attribute the same to children, fools, or madmen, who are not able to judge of
the least things concerning themselves or others; but most especially to those
who, coming in by usurpation, declare their contempt of all human and divine
laws, and are enemies to the people they oppress. None therefore can be judges
of such cases but the people, for whom and by whom the constitutions are made;
or their representatives and delegates, to whom they give the power of doing
it.

But nothing can be more absurd than to say, that one man has an absolute
power above law to govern according to his will, for the people's good, and
the preservation of their liberty: For no liberty can subsist where there
is such a power; and we have no other way of distinguishing between free
nations and such as are not so, than that the free are governed by their own
laws and magistrates according to their own mind, and that the others either
have willingly subjected themselves, or are by force brought under the power of
one or more men, to be ruled according to his or their pleasure. The same
distinction holds in relation to particular persons. He is a free man who lives
as best pleases himself, under laws made by his own consent; and the name of
slave can belong to no man, unless to him who is either born in the house of a
master, bought, taken, subdued, or willingly gives his ear to be nailed to the
post, and subjects himself to the will of another. Thus were the Grecians said
to be free in opposition to the Medes and Persians, as Artabanus acknowledged
in his discourse to Themistocles.[2] In the same manner the
Italians, Germans and Spaniards were distinguish'd from the Eastern nations,
who for the most part were under the power of tyrants. Rome was said to have
recovered liberty by the expulsion of the Tarquins; or as Tacitus expresses it,
Lucius Brutus established liberty and the consulate
together,[3] as if before that time they had never enjoyed any;
and Julius Caesar is said to have overthrown the liberty of that people. But if
Filmer deserve credit, the Romans were free under Tarquin, enslaved when he was
driven away, and his prerogative extinguish'd, that was so necessarily required
for the defence of their liberty; and were never restored to it, till Caesar
assum'd all the power to himself. By the same rule the Switzers, Grisons,
Venetians, Hollanders, and some other nations are now slaves; and Tuscany, the
kingdom of Naples, the Ecclesiastical State, with such as live under a more
gentle master on the other side of the water, I mean the Turk, are free
nations. Nay the Florentines, who complain of slavery under the house of
Medici, were made free by the power of a Spanish army who set up a prerogative
in that gentle family, which for their good has destroyed all that could justly
be called so in that country, and almost wholly dispeopled it. I, who esteem
myself free, because I depend upon the will of no man, and hope to die in the
liberty I inherit from my ancestors, am a slave; and the Moors or Turks, who
may be beaten and kill'd whenever it pleases their insolent masters, are free
men. But surely the world is not so much mistaken in the signification of words
and things. The weight of chains, number of stripes, hardness of labour, and
other effects of a master's cruelty, may make one servitude more miserable than
another: but he is a slave who serves the best and gentlest man in the world,
as well as he who serves the worst; and he does serve him if he must obey his
commands, and depends upon his will. For this reason the poet ingeniously
flattering a good emperor, said, that liberty was not more desirable, than to
serve a gentle master;[4] but still acknowledged that it was a
service, distinct from, and contrary to liberty: and it had not been a handsome
compliment, unless the evil of servitude were so extreme, that nothing but the
virtue and goodness of the master could any way compensate or alleviate it. Now
tho it should be granted that he had spoken more like to a philosopher than a
poet; that we might take his words in the strictest sense, and think it
possible to find such conveniences in a subjection to the will of a good and
wise master, as may balance the loss of liberty, it would be nothing to the
question; because that liberty is thereby acknowledged to be destroy'd by the
prerogative, which is only instituted to preserve it. If it were true that no
liberty were to be preferr'd before the service of a good master, it could be
of no use to the perishing world, which Filmer and his disciples would by such
arguments bring into a subjection to children, fools, mad or vicious men. These
are not cases feigned upon a distant imaginary possibility, but so frequently
found amongst men, that there are few examples of the contrary. And as 'tis
folly to suppose that princes will always be wise, just and good, when we know
that few have been able alone to bear the weight of a government, or to resist
the temptations to ill, that accompany an unlimited power, it would be madness
to presume they will for the future be free from infirmities and vices. And if
they be not, the nations under them will not be in such a condition of
servitude to a good master as the poet compares to liberty, but in a miserable
and shameful subjection to the will of those who know not how to govern
themselves, or to do good to others: Tho Moses, Joshua and Samuel had been able
to bear the weight of an unrestrained power: though David and Solomon had never
abused that which they had; what effect could this have upon a general
proposition? Where are the families that always produce such as they were? When
did God promise to assist all those who should attain to the sovereign power,
as he did them whom he chose for the works he designed? Or what testimony can
Filmer give us, that he has been present with all those who have hitherto
reigned in the world? But if we know that no such thing either is, or has been;
and can find no promise to assure us, nor reason to hope that it ever will be,
'tis as foolish to found the hopes of preserving a people upon that which never
was, or is so likely to fail, nay rather which in a short time most certainly
will fail, as to root up vines and fig trees in expectation of gathering grapes
and figs from thistles and briars. This would be no less than to extinguish the
light of common sense, to neglect the means that God has given us to provide
for our security, and to impute to him a disposition of things utterly
inconsistent with his wisdom and goodness. If he has not therefore order'd that
thorns and thistles should produce figs and grapes, nor that the most important
works in the world, which are not without the utmost difficulty, if at all, to
be performed by the best and wisest of men, should be put into the hands of the
weakest, most foolish and worst, he cannot have ordain'd that such men, women
or children as happen to be born in reigning families, or get the power into
their hands by fraud, treachery or murder (as very many have done) should have
a right of disposing all things according to their will. And if men cannot be
guilty of so great an absurdity to trust the weakest and worst with a power
which usually subverts the wisdom and virtue of the best; or to expect such
effects of virtue and wisdom from those who come by chance, as can hardly, if
at all, be hoped from the most excellent, our author's proposition can neither
be grounded upon the ordinance of God, nor the institution of man. Nay, if any
such thing had been established by our first parents in their simplicity, the
utter impossibility of attaining what they expected from it, must wholly have
abrogated the establishment: Or rather, it had been void from the beginning,
because it was not a just sanction, commanding things good, and forbidding
the contrary,[5] but a foolish and perverse sanction, setting up
the unruly appetite of one person to the subversion of all that is good in the
world, by making the wisdom of the aged and experienc'd to depend upon the will
of women, children and fools; by sending the strong and the brave to seek
protection from the most weak and cowardly, and subjecting the most virtuous
and best of men to be destroy'd by the most wicked and vicious. These being the
effects of that unlimited prerogative, which our author says was only
instituted for the good and defence of the people, it must necessarily fall to
the ground, unless slavery, misery, infamy, destruction and desolation tend to
the preservation of liberty, and are to be preferr'd before strength, glory,
plenty, security and happiness. The state of the Roman empire after the
usurpation of Caesar will set this matter in the clearest light; but having
done it already in the former parts of this work, I content myself to refer to
those places. And tho the calamities they suffer'd were a little allayed and
moderated by the virtues of Antoninus and M. Aurelius, with one or two more,
yet we have no example of the continuance of them in a family, nor of any
nation great or small that has been under an absolute power, which does not too
plainly manifest, that no man or succession of men is to be trusted with
it.

But says our author, there can be no law where there is not a supreme
power, and from thence very strongly concludes it must be in the king; for
otherwise there can be no sovereign majesty in him, and he is but an
equivocal king. This might have been of some force, if governments were
establish'd, and laws made only to advance that sovereign majesty; but nothing
at all to the purpose, if (as he confesses) the power which the prince has, be
given for the good of the people, and for the defence of every private man's
life, liberty, lands and goods: for that which is instituted, cannot be
abrogated for want of that which was never intended in the institution. If the
publick safety be provided, liberty and propriety secured, justice
administered, virtue encouraged, vice suppressed, and the true interest of the
nation advanced, the ends of government are accomplished; and the highest must
be contented with such a proportion of glory and majesty as is consistent with
the publick; since the magistracy is not instituted, nor any person placed in
it for the increase of his majesty, but for the preservation of the whole
people, and the defence of the liberty, life and estate of every private man,
as our author himself is forced to acknowledge.

But what is this sovereign majesty, so inseparable from royalty, that
one cannot subsist without the other? Caligula placed it in a power of doing
what he pleased to all men:[6] Nimrod, Nebuchadnezzar and others,
with an impious and barbarous insolence boasted of the greatness of their
power. They thought it a glorious privilege to kill or spare whom they pleased.
But such kings as by God's permission might have been set up over his people,
were to have nothing of this. They were not to multiply gold, silver, wives or
horses; they were not to govern by their own will, but according to the law;
from which they might not recede, nor raise their hearts above their
brethren.[7] Here were kings without that unlimited power, which
makes up the sovereign majesty, that Filmer affirms to be so essential to
kings, that without it they are only equivocal; which proving nothing but the
incurable perverseness of his judgment, the malice of his heart, or malignity
of his fate, always to oppose reason and truth, we are to esteem those to be
kings who are described to be so by the Scriptures, and to give another name to
those who endeavour to advance their own glory, contrary to the precept of God
and the interest of mankind.

But unless the light of reason had been extinguished in him, he might
have seen, that tho no law could be made without a supreme power, that
supremacy may be in a body consisting of many men, and several orders of men.
If it be true, which perhaps may be doubted, that there have been in the world
simple monarchies, aristocracies or democracies legally established, 'tis
certain that the most part of the governments of the world (and I think all
that are or have been good) were mixed. Part of the power has been conferr'd
upon the king, or the magistrate that represented him, and part upon the senate
and people, as has been proved in relation to the governments of the Hebrews,
Spartans, Romans, Venetians, Germans, and all those who live under that which
is usually called the Gothic polity. If the single person participating of this
divided power dislike either the name he bears, or the authority he has, he may
renounce it; but no reason can be from thence drawn to the prejudice of
nations, who give so much as they think consistent with their own good, and
reserve the rest to themselves, or to such other officers as they please to
establish.

No man will deny that several nations have had a right of giving power
to consuls, dictators, archons, suffetes, dukes and other magistrates, in such
proportions as seemed most conducing to their own good; and there must be a
right in every nation of allotting to kings so much as they please, as well as
to the others, unless there be a charm in the word king, or in the letters that
compose it. But this cannot be; for there is no similitude between king, rex,
and basileus: they must therefore have a right of regulating the power of
kings, as well as that of consuls or dictators; and it had not been more
ridiculous in Fabius, Scipio, Camillus or Cincinnatus, to assert an absolute
power in himself, under pretence of advancing his sovereign majesty against the
law, than for any king to do the like. But as all nations give what form they
please to their government, they are also judges of the name to be imposed upon
each man who is to have a part in the power: and 'tis as lawful for us to call
him king, who has a limited authority amongst us, as for the Medes or Arabs to
give the same name to one who is more absolute. If this be not admitted, we are
content to speak improperly, but utterly deny that when we give the name, we
give anything more than we please; and had rather his majesty should change his
name than to renounce our own rights and liberties which he is to preserve, and
which we have received from God and nature.

But that the folly and wickedness of our author may not be capable of
any farther aggravation, he says, That it skills not how he come by the
power. Violence therefore or fraud, treachery or murder, are as good as
election, donation or legal succession. 'Tis in vain to examine the laws of God
or man; the rights of nature; whether children do inherit the dignities and
magistracies of their fathers, as patrimonial lands and goods; whether regard
ought to be had to the fitness of the person; whether all should go to one, or
be divided amongst them; or by what rule we may know who is the right heir to
the succession, and consequently what we are in conscience obliged to do. Our
author tells us in short, it matters not how he that has the power comes by
it.

It has been hitherto thought, that to kill a king (especially a good
king) was a most abominable action. They who did it, were thought to be incited
by the worst of passions that can enter into the hearts of men; and the
severest punishments have been invented to deter them from such attempts, or to
avenge their death upon those who should accomplish it: but if our author may
be credited, it must be the most commendable and glorious act that can be
performed by man: for besides the outward advantages that men so earnestly
desire, he that does it, is presently invested with the sovereign majesty, and
at the same time becomes God's vicegerent, and the father of his country,
possessed of that government, which in exclusion to all other forms is only
favoured by the laws of God and nature. The only inconvenience is, that all
depends upon success, and he that is to be the minister of God, and father of
his country if he succeed, is the worst of all villains if he fail; and at the
best may be deprived of all by the same means he employ'd to gain it. Tho a
prince should have the wisdom and virtues of Moses, the valour of Joshua, David
and the Maccabees, with the gentleness and integrity of Samuel, the most
foolish, vicious, base and detestable man in the world that kills him, and
seizes the power, becomes his heir, and father of the people that he govern'd;
it skills not how he did it, whether in open battle or by secret
treachery, in the field or in the bed, by poison or by the sword: The vilest
slave in Israel had become the Lord's anointed, if he could have kill'd David
or Solomon, and found villains to place him in the throne. If this be right,
the world has to this day lived in darkness, and the actions which have been
thought to be the most detestable, are the most commendable and glorious. But
not troubling myself at present to decide this question, I leave it to kings to
consider how much they are beholden to Filmer and his disciples, who set such a
price upon their heads, as would render it hard to preserve their lives one
day, if the doctrines were received which they endeavour to infuse into the
minds of the people; and concluding this point, only say, that we in England
know no other king than he who is so by law, nor any power in that king except
that which he has by law: and tho the Roman empire was held by the power of the
sword; and Ulpian a corrupt lawyer undertakes to say, that the prince is not
obliged by the laws;[8] yet Theodosius confessed, that it was
the glory of a good emperor to acknowledge himself bound by
them.[9]